The Intersection of Ademption and Guardianship: A Detailed Exploration

In guardianship law in Western Australia, the intersection of the principle of ademption and the provisions of guardianship and administration sometimes give rise to complex legal issues.

Ademption: An Overview

Ademption is a legal principle that, in essence, stipulates that a specific gift in a will ceases to exist, or is 'adeemed', if the asset or property is disposed of prior to the death of the testator.

This results in the intended beneficiary neither receiving the specific item nor any substitution. However, exceptions to this principle exist in instances of fraud or if the disposal lacked appropriate legal authority.

The Case "ISH [2021] WASAT 169" in Context

ISH [2021] WASAT 169 is a case wherein the principle of ademption was central to the Tribunal's deliberation.

The issue involved potential sale of a house that had been bequeathed in a will purportedly executed in 2007. The crux of the matter was the appropriate treatment of the sale proceeds: should these be merged with the general estate or held separately to uphold the intended bequest?

Interplay with Guardianship and Administration Act 1990 (WA)

The Guardianship and Administration Act 1990 (WA) (the GA Act) proved instrumental in this case.

Section 72 and certain parts of Schedule 2 of the GA Act provide the Tribunal with wide-ranging discretionary powers to maintain the nature or quality of any property within an estate.

This includes directing that the sale proceeds of an asset be placed in a separate bank account.

The Implication in "ISH [2021] WASAT 169"

In ISH [2021] WASAT 169, these provisions were invoked to safeguard the proceeds from the sale of the represented person's house from being amalgamated with the general estate.

This potential amalgamation may have impaired the applicant's claim to these proceeds, thereby potentially contravening the testator's intent.

The Tribunal's handling of the law of ademption in an earlier case, JEB [2016] WASAT 65, underscored a degree of uncertainty in the law's status in Western Australia.

However, in ISH [2021] WASAT 169, the Tribunal circumvented this uncertainty by utilising the extensive powers granted under the GA Act to issue the directions sought by the applicant.

The Best Interest Principle

The Tribunal also reiterated its obligation to act in the best interests of the represented person, which encompasses the consideration of the person's expressed or inferred wishes.

Enshrined under section 4(7) of the GA Act, this principle underscores the importance of acknowledging the autonomy and preferences of the represented person.

Key Take-Aways

• The Tribunal's handling of ademption involves the intricate balance of rigid legal principles and the discretionary powers under the GA Act.

• This approach illustrates a pragmatic response to the complexities that arise in guardianship and administration matters.

Addressing Conflicts of Interest in Guardianship and Administration Appointments: IC [2023] WASAT 33

Guardianship and administration matters often involve complex legal issues and require careful consideration of the best interests of the represented person.

One such issue that frequently arises is the potential for conflicts of interest when deciding whether someone should be appointed as an administrator.

In this blog post, I discuss conflicts of interest in guardianship and administration cases and explore how the law addresses this issue when a proposed appointee is otherwise suitable for the role.

Conflicts of Interest in Guardianship and Administration

Conflicts of interest can arise when a proposed administrator has personal or financial interests that may not align with the best interests of the represented person.

This can become a significant concern in cases where the administrator is responsible for making important decisions about the represented person's estate, including potential legal claims or the management of assets.

An example of such a conflict can be found in IC [2023] WASAT 33, a recent Western Australia State Administrative Tribunal (WASAT) case, where the proposed administrator was the sister of the represented person and also a beneficiary of their mother's estate.

The Tribunal had to consider whether the sister's dual roles as administrator and beneficiary would create a conflict of interest that could compromise her ability to act in her brother's best interests.

The sister (VC) was the primary beneficiary of their mother's estate, which included the family home.

This created a conflict of interest because her brother (IC), for whom she was proposed to act as an administrator due to his mental disability, was apparently left out of their mother's will.

In other words, he was not set to inherit anything from the mother's estate.

VC stated that she intended to ensure that IC could continue to live in the family home for the rest of his life, which was also their mother's wish.

However, this intention was not legally secured as part of the mother's will.

The inherent conflict of interest lay in the fact that VC, as the beneficiary of the estate, could not act against her own interests and bring a claim on IC's behalf against the mother's estate, as it would potentially reduce the value of the estate she was set to receive.

While VC had the best intentions of providing for IC and ensuring his well-being, the law, unfortunately, has seen many instances where promises made cannot be kept in the future, regardless of the initial good intentions.

This highlighted a clear need for legal intervention to ensure IC's rights and interests were properly protected.

The conflict of interest was particularly significant because it could potentially affect IC's right to housing, given that the family home was part of the mother's estate.

It underscored the importance of considering potential conflicts of interest when appointing an administrator, particularly when the proposed administrator stands to benefit from the estate of the person they are set to represent.

Dealing with Conflicts of Interest

The Guardianship and Administration Act 1990 (WA) (GA Act) provides guidelines for determining the suitability of a proposed administrator, taking into account factors such as the compatibility of the proposed appointee with the represented person and the wishes of the represented person (s 68(3) GA Act).

In cases where a conflict of interest is identified, the Tribunal has several options to address the issue.

One option is to appoint a different individual or organization, such as the Public Trustee, to act as the administrator. This can help ensure that the represented person's best interests are protected by an independent party.

In IC [2023] WASAT 33, the Tribunal took this approach, appointing the Public Trustee as a limited administrator with specific responsibilities related to potential legal claims against the mother's estate. The sister was appointed as plenary administrator, save for this limited function given to the Public Trustee. This approach mitigates the conflict, by separating the roles and responsibilities that could potentially clash.

Lessons Learned

Cases like the one underscore the complexity of guardianship and administration matters, and the importance of identifying and properly addressing potential conflicts of interest.

They also highlight the need for legal professionals to be vigilant in spotting these issues and advising their clients accordingly.

The legal framework, including the GA Act and the Family Provision Act 1972 (WA), provide mechanisms to safeguard the best interests of the represented person, but they require careful navigation.

In cases where potential conflicts of interest arise, it's essential to consider all possible solutions - be it appointing a different administrator, creating a limited administration, or separating roles and responsibilities between multiple parties.

Key Take-Aways

• While conflicts of interest in guardianship and administration matters can be complex, they are not insurmountable.

• With careful planning, legal guidance, and the flexibility provided by our legal system, it is possible to ensure that the best interests of represented persons are protected, even in situations where conflicts of interest exist.

• It's a reminder of the importance of specialist legal advice in navigating these challenging situations.

Understanding Guardianship and Administration Matters: When does the Need for Oversight Enable the Appointment of a Guardian in Western Australia?

Guardianship and administration matters in Western Australia are governed by the Guardianship and Administration Act 1990 (the Act).

The Act provides for the appointment of guardians and administrators for persons who lack the capacity to make decisions in their personal and financial affairs.

In this blog post, I discuss the role of oversight in guardianship and administration matters and explore the circumstances under which the State Administrative Tribunal of Western Australia (the Tribunal) can appoint a guardian based on the need for oversight.

I examine the recent decision of IZ [2022] WASAT 85 to illustrate how the Tribunal interprets and applies the relevant provisions of the Act in this context.

Legislative Framework

The Act sets out the criteria for appointing a guardian for a person who lacks the capacity to make decisions in relation to their personal affairs.

Section 43(1)(b) of the Act states that the Tribunal may make a guardianship order if it is satisfied that the person:

(i) is incapable of looking after their own health and safety;

(ii) is unable to make reasonable judgments in respect of matters relating to their person; and

(iii) is in need of oversight, care, or control in the interests of their health and safety.

The Act also establishes a presumption of capacity, as set out in section 4(3)(c), which states that a person is presumed to be capable of managing their own affairs unless the contrary is established.

The Need for Oversight

In the IZ [2022] WASAT 85 decision, the Tribunal considered the role of oversight in guardianship matters and the extent to which the need for oversight, care, or control could justify the appointment of a guardian.

The Tribunal emphasised that the presumption of capacity must be upheld unless clear and cogent evidence to the contrary is presented.

The Tribunal's Approach in IZ [2022] WASAT 85

In IZ, the Department sought a guardianship order for IZ on the grounds that she was unable to make reasonable judgments in relation to her person and was in need of oversight, care, or control in the interests of her health and safety.

The Tribunal, however, did not find sufficient evidence to rebut the presumption of capacity.

It concluded that while there was a reasonable concern for IZ's health and safety, there was no clear evidence that she was incapable of looking after her own health and safety or of making reasonable decisions in respect of matters relating to her person.

The Tribunal observed that individuals with the capacity to make decisions regarding their personal and financial affairs are entitled to make decisions that others may regard as unreasonable or unwise, as long as they do not pose a risk to themselves or others (referencing MH at [120]; PG [2021] WASAT 81 at [92]).

The Tribunal also noted that the need for oversight, care, or control should be read in conjunction with the other limbs of section 43(1)(b) and considered as a global assessment of the person's capacity (referencing GG [2021] WASAT 33 at [60(a)-(c)]).

The Tribunal held that the need for oversight, care, or control is directed towards a person's functional incapacity, rather than the cause of the person's need for assistance (referencing GG at [60(i)]).

The Presumption of Capacity in Guardianship and Administration Matters: Does Objectively Unwise Decision-Making Rebut the Presumption in Western Australia?

The Guardianship and Administration Act 1990 (the Act) governs the appointment of guardians and administrators for individuals who lack the capacity to make decisions regarding their personal and financial affairs in Western Australia.

One of the key principles in guardianship and administration matters is the presumption of capacity, which assumes that an individual is capable of managing their own affairs until proven otherwise.

In this blog post, I discuss the extent to which objectively unwise or less preferable decision-making can rebut the presumption of capacity in a guardianship and administration matter before the State Administrative Tribunal of Western Australia (the Tribunal).

I refer to the decision of IZ [2022] WASAT 85 to illustrate how the Tribunal approaches this issue and applies the relevant provisions of the Act.

Legislative Framework

The Act sets out the criteria for appointing a guardian or an administrator for a person who lacks the capacity to make decisions in relation to their personal or financial affairs. Section 4(3)(c) of the Act establishes the presumption of capacity, stating that a person is presumed to be capable of managing their own affairs unless the contrary is established.

The Presumption of Capacity and Objectively Unwise Decision-Making

In the IZ [2022] WASAT 85 decision, the Tribunal examined the relationship between the presumption of capacity and objectively unwise decision-making by the subject of a guardianship application.

The Tribunal emphasized that people with capacity are entitled to make decisions that others may regard as unreasonable or unwise (referencing MH at [120]; PG [2021] WASAT 81 at [92]).

The Tribunal's Approach in IZ [2022] WASAT 85

In IZ, the Department sought a guardianship order for IZ on the grounds that she was unable to make reasonable judgments in relation to her person and was in need of oversight, care, or control in the interests of her health and safety.

The Department argued that IZ's lack of insight into the reason for her admission and her desire to return to live with her parents were evidence of her incapacity to make reasonable judgments.

However, the Tribunal held that, although there was a reasonable concern for IZ's health and safety, there was no clear and cogent evidence that she was incapable of looking after her own health and safety or of making reasonable decisions in respect of matters relating to her person.

The Tribunal found that IZ was actively managing her own affairs and dismissed the guardianship application.

The Tribunal in IZ cited the observation made in MH, stating that the judgment on whether a person is incapable of looking after their health and safety or unable to make reasonable judgments in respect of matters relating to their person does not depend on whether the Tribunal agrees or disagrees with the person's decisions (referencing MH at [120]).

Key Take-Aways

• The decision in IZ [2022] WASAT 85 demonstrates that objectively unwise or less preferable decision-making by the subject of a guardianship application does not automatically rebut the presumption of capacity in Western Australia.

• The Tribunal emphasizes the importance of upholding the presumption of capacity unless clear and cogent evidence to the contrary is presented.

• This approach reflects the respect for individual autonomy and the right to make one's own decisions, even if those decisions may be considered unwise or less preferable by others.

Understanding Joint Guardianship and Administration Appointments in Western Australia: A Case Study

Guardianship and administration matters in the State Administrative Tribunal of Western Australia (SAT) often involve complex family dynamics and legal considerations.

One question that often arises is when joint guardians and administrators should be appointed.

In this blog post, I discuss the factors that the SAT takes into account when making such decisions, with reference to the Guardianship and Administration Act 1990 (WA) (GA Act) and the recent case of LM [2023] WASAT 15.

Criteria for Appointment of Guardians and Administrators

The GA Act sets out the criteria for appointing guardians and administrators.

Section 44 deals with the appointment of guardians, while section 68 focuses on the appointment of administrators.

In the case of LM [2023] WASAT 15, various family members expressed their willingness to be appointed, either individually or jointly, as LM's guardian and administrator.

The Tribunal, however, had to consider the best interests of the represented person and the suitability of the proposed appointees before making a decision.

Joint Appointments: Pros and Cons

Joint appointments may seem like a fair solution in some situations, especially when multiple family members are willing to take on the responsibility. However, the SAT is cautious when considering joint appointments for both guardians and administrators.

For administrators, joint appointments can pose practical difficulties, particularly regarding banking arrangements and the management of online accounts.

As for joint guardianship, the SAT may consider it only when there is a reasonable expectation that the guardians will be able to work together and reach unanimous decisions for the represented person.

Family Dynamics and Suitability

In LM [2023] WASAT 15, the Tribunal paid close attention to the family dynamics and the ability of the proposed appointees to work together (para. 65). The decision highlighted that joint decision-making may not be successful in situations where family relationships are strained or conflicted.

The Tribunal emphasized the importance of weighing the potential risks and benefits of joint appointments against the backdrop of complex family situations.

Moreover, the Tribunal took into account the potential conflicts of interest that could arise from the appointment of certain family members. In LM [2023] WASAT 15, it was determined that one of the proposed appointees, SC, had a conflict of interest due to his personal interest in his daughters' financial well-being and his duty as an administrator to act in LM's best interests (para. 66). This conflict of interest contributed to the Tribunal's finding that SC was unsuitable for appointment.

In addition to conflicts of interest, the Tribunal also considered the experience and expertise of the proposed appointees. In LM's case (para. 70), the Tribunal noted that her estate involved some complexity, and it was in her best interests for the appointed administrator to have the necessary knowledge and ability to manage her estate effectively.

Ultimately, the Tribunal's analysis of the family dynamics and the suitability of the proposed appointees led to the conclusion that none of the family members who volunteered as guardians or administrators were appropriate for appointment (para. 69).

This unsuitability precluded their sole or joint appointment, prompting the Tribunal to consider alternative options such as the appointment of the Public Advocate and Public Trustee (para. 71).

Public Advocate and Public Trustee Appointments

In cases where no suitable and willing person is available for appointment, the GA Act (section 44(5)) provides that the Public Advocate should be appointed as the guardian.

Similarly, when it is in the best interests of the represented person, the Public Trustee may be appointed as the plenary administrator.

In LM [2023] WASAT 15, the Tribunal concluded that the Public Advocate should be appointed as LM's limited guardian and the Public Trustee as LM's plenary administrator.

These appointments ensured that the guardian and administrator possessed the necessary expertise and ability to make decisions for LM in the foreseeable future.

Key Take-Aways

• Joint appointments of guardians and administrators may seem like a practical solution in some cases.

• However, the SAT carefully considers the best interests of the represented person, the family dynamics, and the suitability of the proposed appointees when making such decisions.

• The case of LM [2023] WASAT 15 serves as a valuable reference for understanding when joint appointments may or may not be appropriate in guardianship and administration matters in Western Australia.

Determining Factors in a s16(4) Costs Application in a Guardianship and Administration Matter in Western Australia

In this blog post, I explore the factors to be considered in determining a s16(4) costs application in a guardianship and administration matter in the State Administrative Tribunal of Western Australia.

This discussion will rely on the case of Y and CO [2020] WASAT 166 and relevant legislation, including the Guardianship and Administration Act 1990 (WA) (the GA Act) and the State Administrative Tribunal Act 2004 (WA) (SAT Act).

1. The Tribunal's Power to Make Costs Orders

Section 16(4) of the GA Act grants the State Administrative Tribunal the power to order that costs be paid by, or out of the assets of, a represented person if it is satisfied that a party to the proceedings has acted in the best interests of the represented person or the person in respect of whom an application is made [1][21].

The principle in s 87(1) of the SAT Act states that parties usually bear their own costs in a proceeding of the Tribunal [22].

2. Factors to Consider

In determining whether to exercise its discretion to order a represented person to pay another party's legal costs, the Tribunal may consider several factors outlined in Re WA and IA, Ex Parte AA and JA [2011] WASAT 33 [32][59-60].

These factors include:

• Whether the application would have been made without the applicant seeking legal advice;

• The presence of serious allegations of abuse, requiring legal advice and representation;

• Conflict between significant parties that may prevent them from presenting a coherent case without legal assistance;

• The complexity of the application requiring legal advice and representation;

• Whether the application is contentious and unique;

• Whether the application raises a special point of law.

It is important to note that awards of costs pursuant to s 16(4) of the GA Act are not common [60].

3. Acting in the Best Interests of the Represented Person

Section 16(4) of the GA Act conditions the positive exercise of the Tribunal's discretion on being satisfied that the person seeking costs has acted in the best interests of the represented person [33].

However, more than merely acting in the best interests of the person is required to succeed in a costs order under s 16(4) [37].

4. The Amount of Costs Awarded

The amount of costs that may be awarded should be such costs relative to those proceedings as the Tribunal sees fit. The award is not referable solely to the costs incurred by that party [33].

5. The Tribunal's Wide Discretion

The Tribunal has a wide discretion under s 16(4) of the GA Act to award costs, but it should not be read independently of the costs regime in the SAT Act and the starting position that parties bear their own costs [36].

6. Relevant Case: Y and CO [2020] WASAT 166

In the case of Y and CO [2020] WASAT 166, the Tribunal made a costs order of $5,000 under s 16(4) [59].

The reasons for this finding include the applicant (Y) acting in the best interests of the represented person (CO), and that it was unlikely the application, which ultimately benefitted CO, would have been made without legal advice sought by Y [41][46].

Key Take-Aways

• Determining factors in a s16(4) costs application in a guardianship and administration matter in Western Australia involves a careful consideration of various factors and circumstances.

• The Tribunal has a wide discretion to award costs but must be satisfied that the person seeking costs has acted in the best interests of the represented person, among other considerations.

Factors to be considered in determining costs application in a guardianship and administration matter in the State Administrative Tribunal of Western Australia (other than pursuant to s 16(4))

When it comes to costs applications in guardianship and administration matters before the State Administrative Tribunal of Western Australia (SAT), other than pursuant to s 16(4) of the Act, there are various factors to consider.

In this blog post, I discuss these factors, referencing the decision MD [2022] WASAT 45 and relevant legislation, to provide an overview of the key principles and considerations in determining costs applications in such matters.

Starting Point: Parties Bear Their Own Costs

As a starting point, s 87(1) of the SAT Act sets the principle that parties typically bear their own costs in a proceeding of the Tribunal.

This principle was affirmed in RK [2020] WASAT 53 (S) (RK), where the Full Tribunal found that the parties to guardianship and administration proceedings should bear their own costs [10].

Discretion to Award Costs

However, the Tribunal does have discretion to award costs in any proceeding, except as otherwise provided in an enabling Act [11].

This includes the power to order a party to pay the costs of another party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding [12].

In exercising this discretion, the Tribunal must consider all of the circumstances of the particular case and whether it is fair and reasonable for one party to bear the costs of another [14][15].

Key Considerations

Some of the key considerations guiding the Tribunal's assessment include whether:

1. A party has conducted itself in a way that unnecessarily prolongs the hearing, has acted unreasonably or inappropriately in its conduct of the proceedings, has been capricious, or the proceedings in some other way constitute an abuse of process. This includes where proceedings should not have been maintained against a party because it is clearly untenable, and no reasonable person would have believed they could be successful [16].

2. Costs have been incurred unnecessarily by a failure of a party to act appropriately in a particular circumstance in the conduct of the proceedings (where the conduct of the party was unreasonable and unfairly caused the increased costs) [16].

Vexatious Proceedings

In the decision of MD [2022] WASAT 45, the term 'vexatiously' was defined under s 3 and s 4 of the SAT Act, with reference to the definition in the Vexatious Proceedings Restriction Act 2002 (WA) under s 3.

Vexatious proceedings are those that are an abuse of the process of a court or a tribunal, instituted to harass or annoy, to cause delay or detriment, or for any other wrongful purpose, or conducted in a manner so as to harass or annoy, cause delay or detriment, or achieve any other wrongful purpose [26].

Section 88(2) of the SAT Act and Costs

While s 88(2) of the SAT Act empowers the Tribunal to order that all or any of the costs of a proceeding be paid by a party, s 88(1) defines 'costs of a proceeding' for this section as those 'other than the costs of a party,' excluding the legal costs sought by a party in a proceeding [28].

Section 87(3) of the SAT Act and Costs

The Tribunal does have the power to order payment of costs by a party under s 87(3) of the SAT Act 'to compensate the other party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding' [29].

However, as noted in Blaskiewicz, discussing Questdale, the legal rationale for ordering costs is not to punish the person against whom the order is made [17].

Key Take-Aways

• In summary, while the general principle in the SAT Act is that parties bear their own costs in guardianship and administration proceedings, the Tribunal does have discretion to award costs in specific circumstances.

• Key factors to consider when determining costs applications include the conduct of the parties, the reasonableness of their actions, and whether the proceedings were vexatious.

• The Tribunal will carefully examine each case, considering all relevant factors, and determine whether it is fair and reasonable for one party to bear the costs of another.

Can a Guardian Initiate Divorce Proceedings on Behalf of a Represented Person in Western Australia?

Guardianship law is a complex area, and one question that often arises is whether a guardian can initiate divorce proceedings on behalf of a represented person.

In this blog post, I explore this topic in the context of Western Australian guardianship law, with reference to the decision in LWL [2008] WASAT 35.

The Guardianship and Administration Act (GA Act)

The GA Act is the key legislation governing the appointment and role of guardians in Western Australia.

However, the Act is silent on whether a guardian can initiate divorce proceedings on behalf of a represented person.

To understand the relevant provisions, we need to look at sections 45 and 46 of the GA Act.

Plenary Guardians (s 45)

Section 45(3)(d) of the GA Act explicitly states that a plenary guardian cannot give consent in relation to the marriage of a minor, sign a notice of intended marriage, or take part in the solemnisation of a marriage under the Marriage Act 1961 (Cth).

However, there is no mention of divorce proceedings in this section.

Under s 45(2)(g) of the GA Act, a plenary guardian may commence, conduct, or settle any legal proceedings on behalf of the represented person, as their next friend, except proceedings relating to the person's estate.

This provision may suggest that a plenary guardian has the authority to initiate divorce proceedings, but it is not explicit.

Limited Guardians (s 46)

Section 46 of the GA Act allows for the appointment of a limited guardian with specific functions vested in them by the Tribunal.

A limited guardian, if given the function under s 45(2)(g), may have the authority to initiate divorce action for a represented person by way of a case guardian, as per Pt 6.3 of the Family Law Rules 2004 (Cth).

LWL [2008] WASAT 35

In LWL [2008] WASAT 35, the Tribunal addressed the issue of whether a guardian could initiate divorce proceedings on behalf of a represented person.

It was decided that the matter required obtaining legal advice on behalf of the represented person, as the issue was at a preliminary stage.

The Tribunal then appointed a limited guardian, MIL, with the function of seeking legal advice on whether divorce proceedings could be initiated against the represented person's spouse.

The Tribunal also directed MIL to seek directions from the Tribunal pursuant to s 74 of the GA Act once the legal advice had been obtained.

Key Take-Aways

• While the GA Act does not explicitly address whether a guardian can initiate divorce proceedings on behalf of a represented person, the decision in LWL [2008] WASAT 35 suggests that a limited guardian may have the authority to do so, provided they have been granted the relevant function under s 45(2)(g).

• However, it is important to obtain legal advice on the matter, as was the case in LWL.

Evaluating the need for a Guardian: the Guardian's Ability to Effect Decisions Not Relevant

In Western Australia, guardianship matters are governed by the Guardianship and Administration Act 1990 (WA) (GA Act).

A recent decision, JL [2023] WASAT 20, provides an opportunity to examine how the Tribunal assesses the need for a guardian pursuant to s 43(1)(c) of the GA Act.

This article provide an overview of the relevant legislation and delve into the Tribunal's approach in determining whether a guardian is required.

Background

JL is a 34-year-old indigenous man who suffered a traumatic brain injury in a motor vehicle accident in 2006.

As a result, he developed a drug misuse problem, and he has been a patient of Mental Health Services since 2009.

JL's mother, BL, has been his primary carer for 16 years.

An application was made to appoint a guardian for JL, but the Public Advocate investigator did not support the appointment, arguing that JL's needs were met less restrictively through family support and existing services.

Section 43(1)(c) of the GA Act

According to s 43(1)(c) of the GA Act, the need for a guardian cannot be assessed against the ability of any guardian to give effect to the decisions made.

This principle was upheld in NCK [2004] WAGAB 6 at [64], where the workability or practicality of an order was deemed irrelevant to the statutory criteria for making a guardianship order.

Instead, the Tribunal must focus on whether there is a need for a guardian to intervene in a person's affairs.

In JL's case, the investigator submitted that there was no one more suited as a guardian than BL, as she had done more for her son than any independent guardian could hope to replicate.

The investigator argued that it was not in JL's best interests to appoint a guardian, as the least restrictive alternative was already in place through family support and existing services.

Best Interests of the Proposed or Represented Person

The primary consideration of the Tribunal must be the best interests of the proposed or represented person. In JL's case, the Tribunal considered the factors set out in s 51 of the GA Act, which include encouraging the person to live in the general community, taking their wishes into account, acting in a manner least restrictive of their rights, maintaining supportive relationships, and maintaining their familiar cultural, linguistic, and religious environment.

In weighing these factors, the Tribunal accepted the investigator's submissions that it was not in JL's best interests to appoint a guardian. The Tribunal noted that this was not a case where there was a lack of family involvement or support that would justify appointing the Public Advocate as JL's guardian against his expressed wishes and against the wishes of his family.

Key Take-Aways

• The JL [2023] WASAT 20 case demonstrates that the need for a guardian under s 43(1)(c) of the GA Act is assessed based on whether there is a need for a guardian to intervene in a person's affairs, rather than the guardian's ability to give effect to decisions made.

• In determining whether a guardian is required, the Tribunal must consider the best interests of the proposed or represented person, taking into account the factors listed in s 51 of the GA Act.

• In some cases, as in JL's, the least restrictive alternative may be found in the support and services already in place, negating the need for a guardian.

Navigating Palliative Care and Hastened Death: A Guide to the Guardianship and Administration Act in Western Australia

In Western Australia, the Guardianship and Administration Act (the GA Act) provides guidance for health professionals when making treatment decisions, particularly in relation to palliative care.

This blog post explores the circumstances under which a health professional may lawfully act in relation to palliative care, despite it hastening the death of the patient, under the GA Act.

I rely on extracts from the legislation and provide references to the relevant sections throughout the article.

Valid Treatment Decisions: Palliative Care and Hastening Death

Section 110ZL of the GA Act provides guidance on the validity of certain treatment decisions made by health professionals.

According to this section, if a health professional:

(a) commences or continues palliative care in relation to a patient; or

(b) does not commence or discontinues any treatment of a patient,

in accordance with a treatment decision that is:

(c) in an advance health directive made by the patient; or

(d) made by the patient’s guardian or enduring guardian or the person responsible for the patient under section 110ZD,

the health professional is considered to have done so in accordance with a valid treatment decision, even if an effect of doing so is to hasten the death of the patient.

Palliative Care Defined

To better understand the context of Section 110ZL, it is important to know what palliative care entails.

According to Section 3(1) of the GA Act, palliative care is defined as a medical, surgical, or nursing procedure directed at relieving a person's pain, discomfort, or distress, but does not include a life-sustaining measure.

Treatment Decisions and Advance Health Directives

Section 110ZL of the GA Act provides that the health professional's actions are considered valid when they act according to a treatment decision:

• specified in an advance health directive or

• made by the patient's guardian or enduring guardian or

• made by the person responsible for the patient under section 110ZD.

An advance health directive, as defined in Section 3(1), refers to a directive made under Part 9B of the GA Act or an instrument recognised as such under section 110ZA.

An enduring guardian, as mentioned in Section 3(1), is the person appointed under an enduring power of guardianship or the persons who are joint enduring guardians under an enduring power of guardianship, including a substitute enduring guardian.

A person responsible for a patient under section 110ZD is explained here.

Key Take-Aways

• In summary, under the GA Act, a health professional in Western Australia may lawfully act in relation to palliative care, even if it hastens the death of the patient, as long as the health professional acts in accordance with a valid treatment decision.

• This decision must be either specified in an advance health directive made by the patient or made by the patient's guardian or enduring guardian.